In a HuffPo lifestyle post, Cornell human development prof Karl Pillemer writes that the biggest regret of the “very old” is that they spent too much of their life worrying.

Their advice on this issue is devastatingly simple and direct: Worry is an enormous waste of your precious and limited lifetime. They suggested training yourself to reduce or eliminate worrying as the single most positive step you can make toward greater happiness. The elders conveyed, in urgent terms, that worry is an unnecessary barrier to joy and contentment.

The elders see worry as a crippling feature of our daily existence and suggest that we do everything in our power to change it. Why is excessive worry such a big regret? Because, according to the elders, worry wastes your very limited and precious lifetime. By poisoning the present moment, they told me, you lose days, months, or years that you can never recover.

In the wilds of Chicago, this year’s ABA Tech Show is in full bloom, with over 100 vendors in an exhibit hall imploring “thought leaders” to come try their wares with the offer of winning a shiny gadget.  It’s one of the grand opportunities for the futurist choir and those who pray at the alter of technology to sing a rousing version of Kumbaya and remember why they are the future of the law.

While you couldn’t get me there with the promise of a Chicago hotdog atop a brand new iPad, Sam Glover from  The Puddle is my eyes and ears, my boots on the ground.  It’s not that Sam necessarily sees things as I do, as he’s a computer nerd whereas I’m your basic Luddite, but he’s my barometer for the cutting edge when small words are necessary. And this year, Sam’s reports back couldn’t be more informative.

Putting aside the “new and improved” claims of vendors who have changed their links from blue to red and their text from Ariel to Garamond, none of which interests anyone who actually practices law, Sam focused on what used to be called Ignite Law, but has now been changed to  LexThink.1 (because name-changing is almost as cool as substance), the cutting edge segments of futurists deepest thoughts. It’s run by Matt Homann, and promises “one big idea” every six minutes.



Sam sat through the whole hour and returned the favor by reducing the program to  ne-sentence-ideas-from-lexthink-1-abatechshow/” target=””>8 one-sentence ideas.  Why only 8 when it’s supposed to be ten? One lost her voice and Sam is math challenged. Don’t judge him.

The idea is to be entertaining and clever, not comprehensive.

Actually, LexThink.1 may be entertaining for the audience, but since most of the presenters are seasoned speakers, it’s more like a dance battle. If doing polished, six-minute presentations were in any way like dancing.

I think I am doing justice to the format in reducing each six-minute presentation to its one-sentence point — if it has one — plus my commentary.

If anything, Sam makes more sense of the hoe-down than it may deserve, so I’ll take a stab at reductio ad absurdum and sum it up on a mere single sentence: We’re running out of buzz words, but dancing as fast as we can.

Sam goes on to  discuss at greater length the theme of LexThink.1, disruption.

So all the speakers talked about what will disrupt law practice, whether it’s virtual offices or LegalZoom or gamification or Big Data.

Here’s the thing: disruptive innovation is not coming to the law. At least, not quickly.

By example, he notes how legal research has moved from dead trees to online, but then reminds that it’s still the same duopoly, West and Lexis, doing the same thing but in a different format.

They just changed the delivery method. They didn’t really even change the pricing model. That’s not disruptive; it’s an evolving business model.

But what of the “big” ideas that are “game changers”?

LegalZoom and Rocket Lawyer are not disruptive innovation, either. They are basically just selling forms and pre-paid legal services, which have been around forever, in one form or another. People who think this is disrupting the legal industry do not have a very good grasp of the legal industry. Customers of LegalZoom and Rocket Lawyer were never your potential clients. They may have been Office Max’s, or Hyatt Legal‘s, but they were never yours.

For another, LegalZoom has been around since 2001 without disrupting anything, as far as I can tell. It’s telling that people are still talking about when LegalZoom will finally start disrupting everything. It won’t.

The story began with a bold Virgin Island judge who refused. He refused to excuse a prosecutor for lying to him. Then he refused to acquiesce to a superior court who ordered him to do so.  Since retired. Judge Leon Kendall would not capitulate.

Judge Kendall, calling out the Supremes and Bethel both, recused himself, telling the dirty story in a  lengthy decision that concluded with his refusal to be party to the shame.  The Supreme Court did not find Judge Kendall’s refusal to obey their mandate at all humorous, and charged him with indirect criminal contempt.  A special master was appointed to try him on the charges, even though he had, by this time, retired from the bench.  The result was a recommendation by the special master that he was not guilty of contempt.

What a judge says in an opinion is sufficiently expressive to trigger First Amendment review. The judge “inten[ds] to convey a particularized message” by explaining his legal analysis and conclusions, and there is a “great” likelihood that the opinion’s message would be understood by its audience—no less than if the judge had published the same analysis and commentary in a law review article.

[D]oes the government’s broader authority to discipline attorney speech about ongoing proceedings also permit the government to hold a judge in criminal contempt for his speech about ongoing proceedings? We answer that question with a resounding “No.” Criminal contempt is no mere disciplinary tool. It derives, like all crimes, from a government’s power as sovereign. Because the government’s use of the criminal-contempt power is the sine qua non of a sovereign act, the government has no greater authority to hold someone in criminal contempt for their speech about ongoing proceedings than it would to criminally punish any speech.

As a general matter, the First Amendment protects freedom of expression regardless of its content or viewpoint and “regardless of whether it is disruptive, offensive, vulgar or insulting.” Yet that rule is not absolute.

…And that means the speech must present a clear and present danger—not just a substantial likelihood—of obstructing the administration of justice. Consequently, the First Amendment protects a judge’s opinion from criminal punishment unless his speech poses a clear and present danger to the administration of justice.

My pal, Bill Henderson, is trying to recreate the 1960’s over at The Legal Whiteboard, his blog dedicated to change in and of legal education and the profession. After quoting Timothy Leary for the proposition of questioning authority (and without any mention of “turn on, tune in, drop out“), he offers law students a challenge:

First, we need your skepticism to question our methods and our motives.  The legal marketplace is undergoing significant changes.   We did not adequately anticipate these disruptions.  In addition, we do not fully understand their breadth and depth.    Because we are human, we are reluctant to admit our confusion.   Even worse, we may even deny there is a problem.

Second, we need your youthful energy to refashion legal education in a way that is much more consistent with our professional ideals.  All lawyers covet prestige, but over the last decades we have confused prestige with money and rankings.  As a historical matter, lasting legal reputations are disproportionately traceable to a lifelong willingness to doggedly and creatively advance the welfare of others.   Even today, the best lawyers find ways to faithfully serve their clients while simultaneously advancing the public good. We need your generation to lay the foundation for a renaissance in which our collective behavior more closely hews to our ideals.

Aside: Before  Victor Medina sends me another nasty email for dissing the iPad, it’s just a symbol. I’ve got nothing against the iPad per se. It’s makes a great cutting board.

At the beginning of this essay, I failed to mention one key proviso to my “question authority” admonition.  I told the law students that when they question authority, they should do it respectfully.  Indeed, all of my life experience has shown me that effectiveness in human relations requires a foundation of mutual respect.  Your elders did not create the challenges that lie ahead.  We are not your enemy.  Our limitation is that we are human, and therefore imperfect; and so are you. 

 Yet, if you question authority persistently but respectfully, you will be doing yourself, legal education, and the legal profession an enormous service.

Aw, jeez. Timothy Leary is rolling in his grave.  Peace, love and rock & roll, but you don’t get to tell your invited skeptics that they can only question authority in a tone you like. That is so un-60’s.

Who else but Gideon at  A Public Defender would rush to read lawprof Alexandra Natapoff’s upcoming law review article, Gideon Skepticism?  After all, how else would he know what he was doing wrong?  As it turns out, Natapoff (who also runs the Snitching Blog) wasn’t talking about him, but the real Gideon, or more precisely, how the good of Gideon deflects attention and responsibility from all the other faults of the system that having counsel for the accused doesn’t fix.

The presence of counsel advances but cannot guarantee fair trials and voluntary pleas. More fundamentally, a lawyer in an individual case will often be powerless to address a wide variety of systemic injustices. A defendant may be the victim of overbroad laws, racial selectivity in policing, prosecutorial overcharging, judicial hostility to defendants, or harsh mandatory punishments and collateral consequences, none of which his lawyer can meaningfully do anything about.

In this world, the presence or absence of counsel is just one piece of a much larger puzzle of systemic dysfunction. Accordingly, while the right to counsel remains an important ingredient in fair trials and legitimate convictions, it cannot bear the curative weight it has been assigned in the modern era of overcriminalization and mass judicial processing. Other legal actors and institutions should share more responsibility for protecting defendants, a responsibility that now rests almost entirely and unrealistically on the shoulders of defense counsel.

There is an assumption that as long as a defendant was represented by counsel, who advised him on the best course of action, all other flaws in the system are waived. As the “right through which all other rights of the accused are protected”, Penson v. Ohio, the Right to Counsel is being used as the one (sole?) indicator of the fairness of a conviction.

As I routinely tell clients and readers of this blog, the system is far bigger than I am and I’m able to exercise only limited control over what’s in front of me. Try as I might, I’m going to be unable to ever single-handedly bring change to the suggestive show-up procedure, or answer the question of why only one side in a fight gets arrested, or why the vast majority of clients are minorities.

We don’t decide what crimes to charge; we don’t decide what offers to make and we don’t decide how harshly to punish crimes. We take individual that comes before us and try to make the most of the tiny amount of wiggle room we’re given and yet then are trumpeted as a sign that all is well in a quite sickly system.

Like the proverbial onion (the veggie, not the satirical website), at every level there is a new problem to confront and address.  The extent to which counsel has any control over outcome is often limited, and sometimes completely missing. 

We take our cases, and our clients, as we find them, and part of how we find them is in a system that is designed to crush them.  The platitude chiseled into the courthouse lintel may speak of justice and fairness, but the wheels of the machine inside are meant to crush and grind.  The platitudes are no more than banal puffery, like the new and improved on the reduced size package of laundry detergent for the same old price. 

But where Gid takes it more personally, given that he’s the public defender sitting at the core of Gideon, the guy whose very existence is supposed to make everything alright and magically turn a crushing system into fairness and justice, Natapoff raised the specter of the distraction Gideon causes the system.  By shoving a PD into the courtroom, nobody bothers to focus on all the other aspects of the system that are wrong, unfair and utterly outside the lawyer’s control.  After all, the defendant has a lawyer now, and all is right with the world. Problem solved!

It’s hardly surprising that people prefer to point to a simplistic, magic bullet approach to fixing whatever ails the criminal justice system, and the attention given to counsel for the indigent, while critical in its own right, serves that purpose to outsiders to the system.  Natapoff’s article puts into words the vital point that it addresses only one of many faults, the others being completely outside counsel’s control.

Sadly, the people who need to realize this point, the public, legislators, judges, won’t bother to read the law review article. As Gideon at 50 may be on a lot of people’s minds these days, the other flaws will be ignored or forgotten.  But their impact will be just as bad as always. Gideon is great, but it’s not enough. And there isn’t any anniversary celebration for judicial hostility to defendants coming any time soon.

This would get filed in the “can’t win for trying” bin, but for the fact that St. Lawrence County Surrogate’s Court Judge Kathleen Martin Rogers saw through it and called it what it was. Garbage.  Via TheNewspaper.com :

Agent Brandon Carrier spotted Deer and Morgan’s white SUV and became suspicious when he saw the driver had more than one hand on the wheel and did not appear to be relaxed. Agent Carrier began following closely enough to read the license plate and radio in to find the SUV was not stolen.

With the marked patrol car following for a total of six miles, the SUV maintained a speed of 50 to 60 MPH. The SUV did not take the opportunity to pass slower vehicles ahead, and when the road expanded into two lanes, the SUV pulled to the right to allow the patrol car to pass. Agent Carrier decided to conduct a traffic stop.

Drive safely and in accordance with both traffic regulations and best practices? Suspicious. Do anything else? Suspicious. Got that?  The decisions runs through a litany of excuses, ranging from the driver having a common Mohawk name (as if that’s a reason to stop someone) to the sun being in the cop’s eyes, all of which the court disposes of deftly.

The point is that the rhetoric of arrest, reasonable suspicion, probable cause, is so utterly meaningless, so easily subject to facile manipulation by anyone capable of telling a half-decent story, as to justify the police in acting upon it. 

While driving safely hasn’t made it to the pantheon of rationalizations, like furtive gestures or the dreaded “reaching,” the only reason it didn’t serve to validate Agent Carrier’s stop here is that one bold judge refused to be bamboozled.  That’s a thin reed upon which to rest our constitutional right to be left alone.

With some regularity, I have tried to make the point that rhetorical arguments used to justify police conduct, particularly those for which courts rely entirely on the testimony of police officers, are too easily subject to manipulation to serve as a basis for the loss of freedom. What makes this case particularly interesting is that the agent likely told the truth to the extent that the driver, Deer, did nothing wrong.  A more cynical cop might have testified that he pulled her over because she crossed a solid line, an easy enough claim that would have been more than sufficient to persuade a court to let the stop stand.  Carrier was honest about it, at least to that extent.

From there, Carrier explained that her driving, safely and in accordance with all (actually most, as she did exceed the speed limit by a bit) traffic regulations was itself suspicious. Nobody drives that way. Everybody breaks the rules.  Her fastidious observance of rules was characterized as being just as nefarious as if she took flight at 100 miles per hour.  There’s no winning then, since either way she’s suspicious and the officer can justify his stop.

Carrier also explained that her driving with two hands on the wheel, arms stiff, made her appear nervous.  Mind you, he followed her for six miles by his own testimony, failing to pass her when she was in the right lane of a two lane roadway. Only brain dead people aren’t nervous when they are followed by a cruiser for any period of time. Heck, most of us are nervous when a cruiser is behind us for a second.  Nobody wants to be stopped.

Desperate defendants cling to the notion that there has to be something more, something real, before the cops can get away with it.  They cling to the words “reasonable suspicion” and “probable cause,” looking at you with wide eyes as if it can’t be possible that they need only tell a story and get away with it.  They are crestfallen when they realize that these words have no real meaning.  They are heartbroken to learn that their rights are lost to empty words.

The flip side argument is that sometimes police do, in fact, observe things that justify their attention.  Some drivers do cross solid lines. Some drivers behave in ways that reflect suspicious behaviors.  Even if every police cruiser had a dash cam, police see things off to the side that don’t appear on the video and are provable only by their word.  Are we to pretend this doesn’t happen?

The problem is that rhetorical characterizations that reduce suspicion to anything a cop says, regardless of whether it reflects wrongdoing or merely a cop’s claim that it struck him as peculiar, take an already problematic legal test to a different level.  There isn’t much to be done about the cop who claims he saw a car swerve over the solid line, but there is plenty to be done about the suspiciousness of safe driving.  And the same is true of that bulwark of suspicion, the furtive gesture.

I reach for my waist all the time. Sometimes, I like to stick my thumb into my waistband to give it some place to be. Other times, I hike up my trousers to compensate for gravity and my midlife stomach.  Yet, this has long been viewed by police, and courts, as a clear indication that there must be a gun in the waistband.  Is this innocent movement or am I reaching for a weapon?  The answer is too often given only after a cop pumps a dozen bullets into a body because he was afraid for his safety.

There are no shortage of excuses or stories to explain why an otherwise ordinary act gives rise to a reasonable suspicion, thus leading to police engagement and arrest, if not violence.  It’s not that anything unlawful has happened, or that the person has engaged in conduct that gives rise to a threat to a police officer.  It’s just a story, a characterization that fits a legal narrative that a judge finds sufficient to validate the reasonableness of a cop’s decision to terminate the right to be left alone.

Kudos to Judge Rogers for not falling into the trap.  But you can’t count on Judge Rogers being there for you every time.  There is almost nothing a person can do that can’t be cast in some suspicious light, which means that it’s only a question of whether the cop can come up with a sufficiently decent story to make your rights disappear.  That’s all it takes, and it’s not a good enough basis to form a sound legal system.

Lawyers are risk averse. These two words, risk averse, are spit out like epithets. They might as well be saying lawyers are pond scum.  It’s often the rallying cry of  marketers and  futurists, cursing lawyers who resist change, won’t “get on board.”  The complaint is that lawyers won’t try the new things they’re trying to sell.

The upshot is that it’s pushed many lawyers into the position of fighting their aversion to risk, not because they think what they’re doing is right, but because they don’t like being called mean names.  The problem is that there is not only nothing wrong with being risk averse, but that not being risk averse is a flagrant failure of our duty to our clients.  We are not hired to represent people by taking blind shots in the dark, unproven risks on a wing and a prayer because somebody came up with a new, untested idea. 

This came to light in a  string of comments with a young public defender the other day.  He had two points, the first about his disdain for lawyers who were afraid to try cases, and the second about the lawyers who didn’t rush to trial, without consideration of a plea, when the client proclaimed innocence. 

There is no question that a lawyer afraid to try a case has no business being a criminal defense lawyer. It’s not only a critical weapon in our arsenal, but one that affects everything we do. Without the will to go to trial, there is no leverage to negotiate a beneficial plea offer, and the lawyer is left to the mercy of the prosecutor.  I’ve known lawyers who have gone 20 years without trying a case. Prosecutors know them too. 

But does that mean, as the PD suggested, that lawyers should ignore the risk assessment of a trial whenever a client claims innocence or dissatisfaction with a plea?  That’s a different issue entirely.  As any experienced lawyer knows, defendants often proclaim innocence at the beginning of a case, only to later get that peculiar smile on their face when confronted with the evidence against them when they know they’ve been caught.  Are they innocent? Are they as innocent as they say they are? Sometimes yes. Sometimes no.

Even worse, however, is the fact that innocent defendants are naïve about the system and the potential outcomes. Some believe that their innocence guarantees them acquittal, as if handed down by whatever flavor of deity they prefer who would never allow an innocent person to be convicted.  The prisons are filled with people like this.  Do we indulge their beliefs, no matter how naïve? Are we there to enable such defendants to find the road to perdition?

So the defendant says he’s innocent and wants his trial.  Is that the end of discussion, empowering the lawyer to plow forward to trial, damn the torpedoes, full steam ahead?

Experience teaches us that defendants may demand a trial without having a meaningful appreciation of the risks he faces.  It’s not that we are averse to trial, or risk, but that to deny the defendant from making a fully informed decision, weighing the risks realistically, is a flagrant failure of effective assistance of counsel.  It is our duty to make sure that our clients make no decision without understanding the risks.  And after they’ve been fully informed, the choice is theirs. 

So does this make us risk averse?  Absolutely, and for good reason.  While we may be rolling the dice, we pay for the loss with other people’s lives.  Win, lose or draw, we go home to dinner that night. The defendant may not.  To be cavalier with the life of another person is wrong. It’s a violation of our duty to our client, and a disgraceful way to approach the law. 

Lawyers approach what we do with an aversion toward risk because taking unproven, unwarranted chances is irrational.  Other occupations, professions even, may be happy to play the crash dummy, the guinea pig, with new ideas, concepts, gadgets, and prove their worth.  But then, they aren’t responsible for other people’s lives.  If they make a mistake, either no one pays for it or they pay themselves. 

Fair enough. Take a chance and pay the price. If you’re right, you win. If you’re wrong, you lose. No one else suffers for your choice to take a risk. 

Much of what lawyers are being sold is a very long way from being proven and usually fraught with potential for risk.  It’s not about really artful rhetorical sales pitches or explanations, which may sound fabulous but provide no assurance that it will work or that the risks are worth accepting.  Are you justified in risking a trial when your tactic is to use your iPad to show critical evidence to the jury? Maybe not when you can accomplish the same showing can be accomplished with absolute certainty by putting it on a poster board, and the court’s screens only work about ten percent of the time, the wifi even less.

Those futurists and technologists who are dedicated to spreading the religion of new ideas denigrate lawyers for our less than enthusiastic embrace of their beloved changes. Twenty years later, some will talk about how they told us, they warned us, that this was the future. Of course, they will have forgotten about the BetaMaxes, the Apple Newton, QR codes, smell-o-vision, the failures that disappeared in the graveyard of new ideas. They won’t mention the changes that were made to tech and concepts that converted them from wild risks to sound applications. All they will remember was that they were early adopters, and you weren’t. Hah, you old dinosaur, unwilling to hop on the train to the future.

And when new ideas and shiny gadgets reach the stage where they are no longer wild risks with other people lives, their privacy and confidentiality, their utility in the courtroom, their acceptance by judges, lawyers will embrace them. Being risk averse isn’t hating new technology and ideas, but putting our clients’ interests ahead of our fascination with new things.

It’s not that risk aversion is a bad thing, but a great thing.  It’s the way lawyers put their own willingness to throw caution to the wind aside for the benefit of their clients. It’s how we do everything in our power to assure our clients of the best possible outcome without taking unwarranted chances with their lives. It’s what we are obliged to do. Any lawyer who does not weigh the risks against the benefits has failed his client and himself. It cannot be our place to take needless chances with other people’s lives. 

Whenever someone denigrates lawyers as being risk averse, the only thing it proves is that they lack an understanding of our duty to our clients.  Smile and walk away.

One of the questions most often asked during my ethics presentations on social media is what to do about “those lying scum who write mean things about me on the internet.”  You see, the flip side of the greatest self-promotional tool created since the Yellow Pages is that the same invisible waves that allow a lawyer to puff his carefully-crafted internet persona similarly allows those who don’t think as well of him as he does of himself to put their thoughts online as well.

This isn’t to say that detractors are right, but that there is no test given to people who want to buy computer keyboards. They can be nuts, angry or just haters. They can be adversaries or competitors who want to take you down a notch or twelve.  They can also be clients who weren’t particularly thrilled with your representation.  Unfair? Sometimes.  Harmful? Sometimes. Fixable? Maybe, but that’s where the danger comes into play.

Macon, Georgia lawyer Margrett Skinner, practicing family law, was not pleased with some of the reviews she received from former clients.  Given the nature of family law, much like criminal law, one might think that comes with the territory. It’s nasty business.  But rather than shake it off, or respond in a way that explains the nature of a practice where bad outcomes happen despite best efforts, Skinner took a different approach and disclosed client confidences as part of her attempt to fight back and mend her reputation.

No. This is something you cannot do. Via the ABA Journal :

The Georgia Supreme Court has refused to approve a reprimand for a Georgia lawyer who admitted posting personal and confidential information about a client in response to the client’s negative online reviews.
The court remanded the ethics case against lawyer Margrett Skinner because the factual record was undeveloped. “Among other things, we note that the record does not reflect the nature of the disclosures (except that they concern personal and confidential information) or the actual or potential harm to the client as a result of the disclosures,” the court said in a March 18 opinion. The ABA/BNA Lawyers’ Manual on Professional Conduct has a summary.
Skinner had admitted violation of a Georgia ethics rule that requires lawyers to maintain client confidences and sought a “review panel reprimand.” Because of the lack of information, the court said it was rejecting Skinner’s petition for the sanction, “the mildest form of public discipline authorized by the Rules of Professional Conduct.”

While some may wonder whether the opportunity to fight back when a client’s online review is decidedly negative is akin to a disciplinary complaint or malpractice suit, the answer thus far is a definitive no.  The internet remains something of a mystery to most courts and disciplinary authorities, and the nature and impact of online reviews remain in their infancy.  Yet, as painful as it may feel, as unfair as it may seem, it does not relieve the lawyer of the duty of confidentiality.

The internet is a double-edged sword.  Just as lawyers can write things about themselves that might stretch the truth just a tad, or omit things that might dissuade a potential client from seeking their wise counsel, clients get to speak their mind as well.  One of the truisms of life, and professional practice, is that not everyone is going to think you’re wonderful.

Whether they’re angry enough to wander the web to spread invective is another matter, but if so, that’s their right.  They get to think poorly of you no matter how much time and effort you put into making yourself seem the next coming of Clarence Darrow.

Whether this is unfair, or just unpleasant, doesn’t really matter. The internet is replete with opportunities to provide “reviews” of services, lawyers included, and they’re not going away.  On the bright side, savvy users realize that most reviews, from restaurants to baby diapers, must be taken with a grain of salt.  Some are phony. Some are planted. Some are just plain nuts.

As was recently noted with book reviews, expressed by legal philosopher Brian Cuban, “People are going to think you suck. Get over it.”  The same is true of your practice of law, whether you deserve the castigation or not.  If you can’t take the anger and criticism, then maybe a safer occupation with less responsibility will be more to your liking, but the law is hard and things don’t always work out for the best. Suck it up.

On the other hand, bear in mind that as much as you may have a laundry list of really good excuses for not returning phone calls, not preparing well conceived and written documents, not appearing in court on time or prepared, not doing the research necessary to present your client’s position in the best possible light, or as has become sadly common, presenting yourself as qualified and experienced when you’re not, clients don’t care.  They are not concerned with your issues and problems. They hire you to fix theirs.

Either way, when the word gets back to you that a client is less than thrilled with your services, you cannot react by smearing the client’s privileged communications across the internet.  You can’t because it’s wrong. You can’t because you will be subject to discipline. And as the Georgia court responded to Margrett Skinner, it may not be sure just how harsh the discipline will be, but it’s not going to be the slap on the wrist she hoped.

While some contend that the legal system’s failings stem from a lack of due process, disparity of resources, or perhaps lopsided power, Fordham lawprof  Thane Rosenbaum writes in the  Chronicle of Higher Education that the missing ingredient necessary to make our system work is vengeance. 

It’s finally time to humanize justice by restoring the face of vengeance. Doing so is not an invitation to lawlessness but a mandate that the law must act with the same moral entitlement, and the same spirit of human fulfillment, as the righteous avenger.

Vengeance is as old as man himself. It is an instinct at the very core of our emotions; indeed, it’s a byproduct of our evolutionary history. Human survival depended greatly on convincing neighboring clans, tribes, and states that no attack or moral injury would go unanswered. Payback was nonnegotiable and self-regulating. Reclaiming one’s honor was not undertaken out of haphazard rage. To avenge was to achieve justice, and to do what was just necessitated the taking of revenge.

The law of the jungle. An eye for an eye. Hammurabi was right? Call it what you will, the point remains that Rosenbaum, who happens to have a book coming out later this month called Payback: The Case for Revenge, not only praises the notion of revenge, but argues that it’s a moral imperative.

But the distinction between justice and vengeance is false. A call for justice is always a cry for revenge. By placing their faith in the law, those who justifiably wish to see wrongdoers punished are not disavowing vengeance. If anything, they are seeking to be avenged by the law. No matter what they say, victims aren’t choosing justice over vengeance; they are merely capitulating to a cultural taboo, knowing that the protocol in polite society is to repudiate revenge. But make no mistake: When it comes to the visceral experience of being a victim, revenge and justice are one and the same.

Notwithstanding our “refined” view of the criminal justice system, which regulates and punishes conduct on behalf of society rather than the aggrieved victim, Rosenbaum equates “justice” with vengeance.  And not just any sort of vengeance, meaning whatever punishment satisfies a judge’s sense of sufficiency, but the victim’s lust for “justice.”  In other words, the point of the criminal justice system should be to satisfy the desire for revenge of the victim.  Anything less is unfulfilling.

Without the debt canceling, equalizing, restorative dimensions of revenge, faith in humankind is lost and the world makes less sense. That’s precisely what people mean when they lament that there is “no justice in the world”—a wrongdoer has gotten away with murder, and all who depend, morally and emotionally, on the sum-certainty of vengeance are left helpless, dumbfounded, and enraged. The revenge we are so often denied in our private lives is experienced vicariously—courtesy of the movies.

So if justice and revenge are fundamentally the same, why can’t we be more honest about the role that revenge plays in our lives?

To the extent Rosenbaum speaks to how some victims, some survivors of victims, feel about the inadequacy of the system, he’s no doubt right that it often fails to satisfy their “moral and emotional” needs.  After all, what parent of a murdered child wouldn’t feel the visceral desire to inflict pain, at least as harsh if not worse, on the “animal” who did it.  Most of us would. 

But then, his assertion that we’re dishonest about it is nonsensical. It’s not difficult to understand how that parent would feel, and few of us would blame the survivor for feeling that way.  We’re not dishonest about base human needs. As a society, however, we have made a decision that “justice” is not allowing the worst of human instincts to be unleashed, but to craft a system that imposes punishment based on society’s detached goals, not the victim’s emotional needs.

This doesn’t fly with Rosenbaum. Screw society and its pretense of refinement and purpose. What about the pain?

Governments became involved—essentially taking a monopoly on vengeance—only during the Enlightenment, when the social contract obligated citizens to surrender to, and faithfully accept, the rule of law.

But regardless of who becomes the designated revenge-taker—either the state, with its impersonal security apparatus, or the avenger, who is discharging his personal duty—human beings can no more suppress their revenge impulse than can they curb their instincts for sex and hunger for food. Getting even is a biological necessity. We need our revenge, notwithstanding how feverishly religions and governments have worked to eradicate it from the human experience. Vengeance can be curtailed, but it can never be truly undone, nor should it. Vengeance keeps returning … well … with a vengeance.

Plea bargains? The worst thing ever created, not because it undermines the distinction between guilt and innocence by providing incentives for the plea or costs for the challenge, but because it woefully fails to satisfy the victim’s desire for vengeance.

So we tolerate a legal system where over 95 percent of all cases are resolved with a negotiated plea—bargained down from what the wrongdoer rightfully deserved. That means that convicted criminals are rarely asked to truly repay their debt to society. Even worse, this math-phobic system tragically discounts the debt owed to the victim, who is grossly shortchanged.

Plea bargains, with their bargain-basement rationales, epitomize the degree to which our legal system has too little respect for victims and even less regard for the moral imperative that justice must be done. What is paramount under the talionic principle seems to be optional under our laws. A justice system that recognized the duty it owed to victims would not rely so heavily on this method of resolution, which casually distorts the truth and trivializes the remedy.

What does the “wrongdoer rightfully deserve”?  Life plus cancer?  Spikes stuck through his eyes? Let your wildest revenge fantasies take flight, Rosenbaum is your advocate.  After all, it’s not right until the victim feels that surge of emotional vindication rush through his veins.

While all of this would make for a fabulous Onion satire of the system, or reflect the systemic vision of tin-foil-hat wearing avenger who types late into the night in the hope that it will purge the demons who voices he can’t stop hearing, this came from the mind of a law professor, an individual charged with the shaping of the minds of law students who may some day be entrusted with the discretion of a prosecutor or the authority of a judge.

And while there is no doubt that Thane Rosenbaum should have the right to express his adoration of revenge no matter how much delusional it appears, this article appeared in the Chronicle of Higher Education in an effort to persuade others engaged in teaching to share his lust for vengeance.  Is this really the sort of ideation they seek to disseminate and promote? 

And just in case you haven’t had enough of Rosenbaum’s vomit of moral imperatives, his article next month will be about how to make an Iron Maiden in your basement to guarantee that people whose dog poops on your lawn will pay dearly.

H/T Stephanie West Allen

A pro se prisoner, suing because he was subjected to the prisoner’s nightmare of being forced to perform oral sex on a guard, became that one in a million winner in the litigation lottery.   Max Kennerly describes what happened:

The case arose from a prisoner in the United States Penitentiary in Lewisburg, Pennsylvania, who alleged “that he was taken to the basement of the SMU and forced to perform oral sex on Correctional Officer Pealer while Correctional Officer Edinger held his neck and Correctional Officer Gimberling stood watch by the door.” “SMU” stands for “Special Management Unit”; if you’ve ever watched a movie or TV with a prison in it, you know SMU as “ the hole .”

Held: The law enforcement proviso extends to law enforcement officers’ acts or omissions that arise within the scope of their employment, regardless of whether the officers are engaged in investigative or law enforcement activity, or are executing a search, seizing evidence, or making an arrest. The proviso’s plain language supports this conclusion. On its face, the proviso applies where a claim arises out of one of six intentional torts and is related to the “acts or omissions” of an “investigative or law enforcement officer.” §2680(h). And by cross referencing §1346(b), the proviso incorporates an additional requirement that the “acts or omissions” occur while the officer is “acting within the scope of his office or employment.” §1346(b)(1). Nothing in §2680(h)’s text supports further limiting the proviso to conduct arising out of searches, seizures of evidence, or arrests.